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Court of Criminal Appeal 6 October 2023

Thompson v R

[2023] NSWCCA 244

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER DIRECTIONS TO JURY INADEQUATE ACCUSED CRIME APPEALS

Citation: Thompson v R [2023] NSWCCA 244
Court: Court of Criminal Appeal, New South Wales
Date: 6 October 2023
Judges: Beech-Jones CJ at CL; Hamill J; Ierace J

Background

The appellant was convicted by jury of conspiring with four co-accused, and others, to import a commercial quantity of cocaine into Australia, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The conspiracy was alleged to span from January 2014 to February 2017 and involved three separate importation attempts, the first two of which failed.

The third attempt succeeded in bringing cocaine aboard a yacht owned by the appellant. Australian authorities intercepted the vessel on 2 February 2017 and seized cocaine with a gross weight of 1.42 tonnes and a net (pure) weight of 1.11 tonnes. The appellant maintained at trial that he was involved in a separate, different conspiracy from the one charged.

The appellant was sentenced to life imprisonment with a non-parole period of 22 years. He appeared unrepresented in the appeal and challenged both his conviction and his sentence on numerous grounds.

  • Whether incompetence by the appellant's trial solicitor and barristers caused a miscarriage of justice
  • Whether the trial judge's directions to the jury on conspiracy were adequate to prevent conviction for a conspiracy different from the one charged
  • Whether a 2001 prior drug importation conviction was properly admitted as tendency evidence
  • Whether the Crown improperly introduced coincidence reasoning without serving a coincidence notice
  • Whether the trial judge erred in summarising the appellant's defence for the jury
  • Whether the trial judge failed to direct the jury adequately on evidence inadmissible against the appellant
  • Whether the trial judge erred by refusing to discharge the jury after draft legal submissions were inadvertently provided to the foreperson
  • Whether the trial judge erred by refusing to discharge the jury following a co-accused's closing address
  • Whether the finding that the appellant was a "principal" in the conspiracy was open on the evidence
  • Whether the sentence of life imprisonment was manifestly excessive, and whether sentencing errors occurred regarding the weight of drugs and the use of prior criminal history

Decision

Conviction appeal

The court dismissed all nine grounds of the conviction appeal. On the incompetence ground, the court accepted that first conference between the appellant and his trial counsel occurred only a week before trial due to the instructing solicitor encountering genuine difficulties in retaining replacement counsel. The limited cross-examination of Federal Agents was characterised as a rational forensic decision within counsel's discretion. Although trial counsel's mid-trial withdrawal was found to be professionally unsatisfactory, it did not produce a miscarriage of justice because the submissions on the discharge application had already been completed and the solicitor was able to cover the remaining steps.

On the tendency evidence ground, the court held that the appellant's 2001 drug importation conviction was properly admitted. Its probative value substantially outweighed its prejudicial effect, assessed according to the test under s 101 of the Evidence Act 1995 (NSW) as it stood at the time of the trial judge's ruling. The cross-examination about the similarities between the appellant's account of the 2001 events and his account of the current offending was not coincidence reasoning within the meaning of s 98 of the Evidence Act, because it bore on the credibility and veracity of the appellant's own evidence rather than on the improbability of two events occurring coincidentally.

The jury direction grounds were also rejected. The trial judge had directed the jury that unless the Crown disproved the appellant's alternative conspiracy theory beyond reasonable doubt, all accused must be acquitted. The directions on how to treat evidence relating to unrelated criminal agreements were found to be adequate. Similarly, the refusal to discharge the jury after a single document of draft submissions was inadvertently provided to the foreperson was upheld: the trial judge had discharged the foreperson and found no opportunity existed for other jurors to have seen the document's contents.

Sentence appeal

The court also dismissed the sentence appeal in its entirety. The finding that the appellant was a principal in the conspiracy was open on the evidence. No error was established in the trial judge's approach to the weight of the drugs as a sentencing factor, the use of the prior criminal record, or the overall sentence. The life sentence was not found to be manifestly excessive given the scale of the offending.

Orders Made

  • Time for filing the notice of appeal extended to 19 August 2022
  • Leave to appeal against conviction granted
  • Appeal against conviction dismissed
  • (Sentence appeal also dismissed, per the court's reasons)

Key Takeaways

  • A late initial conference between an accused and trial counsel does not automatically give rise to a miscarriage of justice where the delay is adequately explained by the instructing solicitor's difficulty in securing replacement counsel.
  • Trial counsel's tactical decisions, including the extent of cross-examination and the structure of closing addresses, generally remain within counsel's discretion; an accused's written instructions to take a different approach do not override that discretion.
  • Professionally unsatisfactory conduct by counsel, such as withdrawing mid-trial, will not constitute a miscarriage of justice unless it can be shown to have actually prejudiced the accused's case.
  • Under s 101 of the Evidence Act 1995 (NSW) as it then applied, tendency evidence from a prior conviction is admissible where its probative value substantially outweighs its prejudicial effect, and the Court of Criminal Appeal confirmed that assessment is made at the time of the trial judge's ruling.
  • Cross-examining an accused about the similarity between their account of past events and their account of current offending goes to credibility and veracity rather than coincidence reasoning, and does not require a coincidence notice under s 98 of the Evidence Act.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.5, 307.1
- Evidence Act 1995 (NSW), ss 97, 98, 101, 102, 103
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Commonwealth Constitution, s 80
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Fantakis v R [2023] NSWCCA 3
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Geraghty v R [2023] NSWCCA 47
- Taylor v R [2020] NSWCCA 355
- The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
- Toller v R [2021] NSWCCA 204
- Thompson v R [2007] NSWCCA 83